R. v. Skierka Date:, 2017 BCPC 53

Citation: R. v. Skierka Date: 20170131 2017 BCPC 53 File No: 61530-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JESSE JAMES STANISLAW SKIERKA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: L. Ostry Counsel for the Defendant: Z. Myers Place of Hearing: North Vancouver , B.C. Dates of Hearing: December 8, 2016; January 31, 2017 Date of Judgment: January 31, 2017

[ 1 ] THE COURT: On September the 8th, 2016, I convicted the accused of using a knife during an assault on one Sean Powell, an off-duty RCMP officer, on January 27th, 2015, in North Vancouver contrary to s. 267 (

a) of the Criminal Code of Canada. The parties appeared before me on December 8th, 2016, and made submissions with respect to sentencing. I reserved my decision until today to further consider their submissions. [ 2 ] The facts of this matter are fully set out in my written reasons filed on October 3rd, 2016. I will not repeat all of them today. In

summary, this was what is commonly called a road rage incident. [ 3 ] On January 27th, 2015, while driving northbound on the No. 1 Highway and when attempting to merge into traffic proceeding towards the Second Narrows Bridge, the accused perceived that he had the right of way and that Mr. Powell ought to have allowed him to merge into the northbound traffic but did not. The accused felt disrespected. After merging and getting to the left of Powell's vehicle, he spat on it to show is displeasure. At trial, he admitted this was a stupid thing to have done and said he regretted doing it.

I found this to be both an aggressive and an inflammatory act on his part. [ 4 ] Powell shortly moved in behind the accused's vehicle on the day in question so as to observe its plate number which he intended to call in. The accused stopped almost immediately and got out, reaching into his driver's door and pulling out a knife as he did so. Once out, he held it in his left hand and brandished it at the low ready position or an angle of a little less than 45 degrees from his body.

The knife was of the sort that had a retractable blade that could have been deployed very quickly, but which was not out or deployed at any time on the day in question. [ 5 ] He appeared angry and agitated, but took at most two to three steps towards Powell who himself had alighted from his truck and was then standing behind his driver's door. Powell yelled, "Police, drop the knife," or words to this effect and held up his police badge. The accused was then four to five metres away from Powell and Powell could see the knife in the palm of his hand.

The accused, likely as a result of what Powell said, got back in his car and drove off with Powell in pursuit. There was no evidence the accused knew or suspected Powell was a police officer until Powell yelled at him. [ 6 ] Powell radioed his detachment in North Vancouver and the accused was arrested shortly afterwards on Lonsdale Avenue just south of the Upper Levels Highway. His car was also impounded by the RCMP following arrest and, according to Mr. Myers for the defence, was not released for some considerable number of days after the arrest. [ 7 ] At the trial, the accused testified.

For the most part, on conclusion of the trial, I did not find the accused to be a credible witness. He was evasive at times in his testimony. [ 8 ] At the sentencing hearing, Crown filed particulars of the accused's history before the court. He has a record of various Motor Vehicle Act infractions starting on October 19th, 2008, to December 29th, 2015, being the violation dates of the first and last entry on his record.

This driving record contains, for example, two suspensions or prohibitions of 24 and 12 hours for drugs and the shorter are said to be alcohol-related on March 18th, 2010, and July 31st, 2012, respectively. [ 9 ] On January 27, 2015, the date of the offence, he did not have a criminal record and, on December the 8th, 2016, he did not, either. There is a single conviction for possession of a controlled substance on April the 12th, 2015, registered on December the 1st, 2016, one week prior to the sentencing hearing in this matter.

He was granted a conditional discharge for this offence. [ 10 ] No presentence report was requested by either counsel in this matter and thus none was obtained. No written references were placed before the court on December the 8th at the sentencing hearing or, with one exception, any third-party documentation confirming anything about the accused and his background. The facts I was given about the accused are thus based substantially on what the accused has advised his counsel, his instructions, or what Mr. Myers was able to obtain independently in communications with others.

The single exception I refer to was the VCC certificate dated August 2012 relating to the accused's completion of the Access to Transportation Trades Program. [ 11 ] The accused was born on October 28th, 1991, and was thus aged 23 on the date of the offence and is now aged 25. He lives with his mother in North Vancouver and is said to help out financially with the costs which she incurs. [ 12 ] As I have said, in August 2012, he completed a one-year program at Vancouver Community College, being an introduction to trades as above.

Since then, he has not apparently chosen a specific trade and moved forward with further training. According to Mr. Myers, this is because he cannot afford the cost of required courses. He is aware of the availability of student loans, but does not wish to incur one at this time to assist with the cost of formal training. As well, the accused feels he cannot work part-time and train for some trade at the same time. [ 13 ] According to Mr. Myers and as per his evidence at trial, the accused now is employed part-time by Sooke Landscaping where he has worked for a number of years.

His current status was said to be semi-full-time. When Sooke needs a worker, the accused gets called. Mr. Myers advised the court that his boss, I understood in a telephone call with Mr. Myers, indicated that the accused was a reliable worker. Mr. Myers said that the accused's boss did not wish to provide anything to the court in writing concerning his employee. [ 14 ] When I attempted to clarify the nature and extent of the accused's employment with Sooke with Mr.

Myers and asked him to consider obtaining instructions as to whether the accused had available tax returns or, for example, a T4 slip or slips from Sooke, I was later advised that the accused wanted to conclude the sentencing hearing on December the 8th without providing such information. I was not advised whether such documentation existed or not. [ 15 ] The accused is said to have completed Grade 12 in 2009 and was said always to have been a good student. [ 16 ] He has a girlfriend whose parents have a place in Palm Springs.

I was told by reason of the outstanding criminal matters prohibiting his travel to the United States, that the accused had not been able to visit her there despite being invited to do so by her

parents. He would like to do so in future. Mr. Myers indicated that if he obtained a criminal record in this matter, he could not do so. [17] I turn now to the position of the Crown and defence as to what would be a fit and just sentence. The Crown [18] Ms. Ostry asserts that a suspended sentence and a probation order of 12 months' duration would be an appropriate sentence. She helpfully provided a list of proposed terms.

In addition, the Crown seeks a DNA order noting the offence in question is a primarydesignated offence, and a one-year s. 110 Criminal Code order with respect to possession of weapons and other items delineated therein. [19] She opposes the granting of a conditional discharge arguing that it would be contrary to the public interest, citing the case of R.v. Nam, [1999] O.J.

No. 900, which I shall return to. [20] In her view, the aggravating factors in this case are the fact that this is a road rage incident, a weapon was brandished, and therewas on the facts the potential of harm to members of the public, particularly having regard to where it occurred. She also asserts thespitting was such a circumstance. As to mitigating factors, she submitted that the court should consider that in January 2015 he had noprevious criminal record, no bail breaches, and that he was employed and living in a stable situation. He was relatively young, inaddition.

Both counsel agree that on December the 8th, 2016, the accused was to be treated as a person without a criminal record. Mr.Myers did not object to Ms. Ostry's above listings of both aggravating and mitigating factors. [21] At the conclusion of the sentencing hearing, I asked the accused if he had anything he wished to say before I considered hissentence. He simply said, "I'm sorry for taking the court's time." I do not consider this statement as a clear expression of remorse on hispart for what he did on January 27th, 2015.

Thus, I do not treat it as a further mitigating factor, but nor is the absence of a clear statementof remorse an aggravating factor. It is sometimes therefore said to be a neutral factor in the sentencing process. [22] Ms. Ostry submitted that the relevant sentencing principles were denunciation and both specific and general deterrence. Mr.Myers did not disagree, nor do I. However, I also consider, due to the age of the accused, that rehabilitation is also an important factor. Position of Defence [23] Mr.

Myers noted that as far as the accused's driving record was concerned, most infractions occurred when he was a youth andthere were few recent convictions. In fact, this record is about evenly divided between offences which occurred before and after theaccused attained age 19. [24] He admitted that Mr. Powell was impacted by his client's actions, but emphasized that the blade of the knife had never beenreleased and that it was held only at the low ready position and, thus, in terms of the use of a weapon, it was on the less serious side ofthings. There were no bail breaches after January 27th, 2015.

The accused was employed and in a relationship. [25] Mr. Myers said it was not contrary to the public interest for me to grant a second conditional discharge as opposed to asuspended sentence and probation. If I did so, I could include more hours of community work service. He pointed out that a conditionaldischarge record could be erased in three years whereas one could not apply to expunge a criminal record before eight years had elapsed. The accused could travel to Palm Springs, apparently, if granted a conditional discharge, but not if given a suspended sentence.

Theaccused had been required to tell his girlfriend and her parents about this matter and had experienced shame in doing so. This impactedthe matter of specific deterrence. [26] It was not contrary to the public interest, in Mr. Myers' submission, to grant a conditional discharge. He did not object to any ofthe probationary terms that Ms. Ostry proposed. Legal Principles [27] Ms. Ostry referred the court to the remarks of Judge Harris in an Ontario road rage case, namely, R. v.

Nam, at paragraph 16and 17 as follows, discussed under the heading, "Principles of Punishment": 16 I agree with Crown counsel when he places denunciation at the top of the list. "Road-Rage" incidents have become all toocommon and popular on our highways. Motor vehicles, although not necessarily in this case, can be lethal weapons and "Road-Rage"consequences can be tragic, not only to those engaged in it, but to innocent users of the highways.

Although the vehicles were not used asweapons in this case, the "Road-Rage" incident on Sheppard Avenue and Leslie Street, precipitated the repulsive spitting incidents andthe ultimate unprovoked violence by the accused. The other important principles to consider in relation to "road rage" and the assaultiveconduct that followed are general and specific deterrence; protection of the driving community; proportionality in relation to the gravityof the offence; and retribution [citation omitted]. 17 This is a charge of Assault causing bodily harm and not a driving offence.

Nevertheless, innocent, careful and concerned citizenswho are fortunate enough to own vehicles and travel our highways, have a right to be protected from abusive, ill-tempered, high-handedand impatient drivers, some or all of which can lead to a charge of this nature. I appreciate that in this case their attitudes may have beenworse than their actual driving. The operation of their motor vehicles started the ball rolling and led to everything that took place.

Amessage must be sent and re-sent to society condemning the conduct of this accused or any like minded accused as reprehensible andunacceptable, and will not be tolerated. [28] The facts in Nam are more serious than in the case at bar and Mr. Nam was ordered to pay a $1,500 fine and placed onprobation for two years. [29] Counsel also referred me to four other authorities, namely: 1. R. v. Skolnick, (SCC), [1982] 2 S.C.R. 47;

2. R. v. McSorley, [2000] B.C.J. No. 1994; 3. R. v. Small, 2001 BCCA 91 , [2001] B.C.J. No. 248; and 4. R. v. Wiltshire, [2004] O.J. No. 4554. [30] The latter three cases are examples of when trial judges have granted discharges. I have considered all of them. [31] In McSorley, a professional hockey player who slashed a Vancouver Canuck in the head with his stick, a weapon, during ahockey game was given a conditional discharge and placed on probation for 18 months by Judge Kitchen of this court. This judge foundthat McSorley regretted the incident and was remorseful.

General deterrence was an important consideration for him. He also noted thatthe risk of McSorley doing a similar act again would only be in the context of an NHL game and felt in terms of protecting the public,that NHL players were in a better position to protect themselves. [32] In Small, the accused had pled guilty to a charge of production of a controlled substance, marihuana, contrary to s. 7(1) of theControlled Drugs and Substances Act. He had no criminal record and was growing marihuana to sell it to a society which, as part of itsmandate, sold it to members who qualified to receive medicinal marihuana.

He used it himself for such purposes. He had donated manyhundreds of hours to further the work of this society. [33] The trial judge rejected sentencing him to a conditional discharge feeling that it would be contrary to the public interest as theaccused, in doing what he did, stood to make a considerable profit. In sentencing the accused to a fine of $3,000 and placing him on a12-month probation order, he focused on the need for general deterrence. [34] The accused appealed.

Madam Justice Newbury of our Court of Appeal quoted the eight general principles set out in ourleading case dealing with discharges, namely, R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450, all of which Ihave considered, emphasizing items four and five on the list as follows:

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that itis not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions. [35] Crown in Small noted in argument that the accused had earlier in June 2000 been convicted of production of marihuana in 1998and had pled guilty and was granted an absolute discharge by Mr.

Justice Wong who was aware of the Provincial Court judge's decisionas above in Small and that it was subject to an appeal. Madam Justice Newbury referred to the Tan decision in paragraph 11 of herreasons as follows: R. v.

Tan (1974) (BC CA), 22 C.C.C. (2d) 184, a decision of this court, stands for the proposition that in decidingwhether to grant a discharge, a court may consider the fact that the accused received a discharge on a previous occasion. [36] In paragraph 12, she said this: 12 The previous discharge leads one to the fifth conclusion referred to by the Court of Appeal in Fallofield [above] and in my viewmilitates against the granting of an absolute discharge. The fact is that Mr. Small, albeit for reasons of compassion, has taken acalculated risk and already received one absolute discharge.

There is no evidence to suggest that he regrets breaking the law as it nowstands - on the contrary, there was evidence that he was "unapologetic" and intended to "continue to set up grow operations on theSunshine Coast and elsewhere." Although the Ontario Court of Appeal has ruled that the prohibition against the possession of marihuanafor medicinal purposes infringes the Charter, the coming into effect of that declaration was postponed for reasons relating to the Court'sperception of the public interest.

The government through the Minister of Health has indicated that it requires time in which to ensure alegal supply for medical patients, and to enact appropriate laws that will guard against the obvious abuses that could result from limitedlegalization. That time has not yet passed and the new system has not yet been put into place.

In the meantime, the law remains in effect. [37] Thus, she rejected an absolute discharge as being contrary to the fifth principle in Fallofield, but did substitute a conditionaldischarge and probation for 12 months in lieu of the trial judge's decision. [38] This case, in my view, confirms several relevant principles for my consideration in sentencing in the case at bar as follows: 1. The granting of an earlier discharge, here, a conditional one, does not in itself preclude a trial judge in sentencing an accused fromgranting a second one. 2.

A sentencing judge can consider earlier discharges in sentencing an accused. I note that in Tan there was an issue as to whetheror not the sentencing judge could consider that Ms. Tan had earlier been granted a conditional discharge and sentencing her for a latershoplifting charge. Mr. Justice Branca, in agreeing this could be so, said this in paragraph 18 of his reasons in Tan: 18 What the Court below was doing was considering the fitness of an absolute or a conditional discharge as a mode of disposition ofthe offence to which the respondent had pleaded guilty.

Surely, the primary duty of the Court is and would be to inquire into whether ornot the applicant was a person of good character; his mode of life and other antecedents germane to the question of sentence and in theinstant case to satisfy itself that an absolute or conditional discharge was in the best interests of the accused and not contrary to the publicinterest. Mr. Justice McIntyre, echoing this point of view, said this in Tan in paragraph 26 of his reasons: 26 MCINTYRE, J.A.:--I have read the reasons for judgment of my brother Branca in this matter and I am in general agreement with

his disposition of the appeal. I would, however, like to add this short comment. In deciding whether to grant or withhold a discharge under the provisions ... of the Criminal Code the sentencing Judge must consider both the interest of the accused and that of the public. In the second consideration the question of whether the accused person has had a previous discharge and the manner of his or her reaction to it is certainly both by logic and common sense a relevant factor to be known and considered by the Judge.

This information may, indeed must, be put before the Judge so that he can discharge his task in considering the fundamental conditions under which a discharge may be given. 3. The existence of an earlier discharge for another offence can be considered under principle number 5 in the Fallofield case. Nothing in the Tan decision says that a prior discharge must relate to an offence which preceded the offence for which the trial judge was sentencing the accused.

In the case at bar, the conditional discharge granted to the accused related to an offence which followed the offence for which I am sentencing the accused. [ 39 ] In the Wiltshire case, the accused punched a victim once, loosening two of his teeth and causing them to bleed. The assault occurred when he attempted to remove his 15-month-old son from his mother's care. The trial judge sentenced the accused to a suspended sentence and probation. [ 40 ] On appeal to the Ontario Superior Court of Justice, Mr.

Justice Cusson found that the trial judge had not given proper weight to the accused's need for security clearance in his employment and in finding that it was not in the public interest to grant a conditional discharge. He said this in paragraph 22 of his reasons in granting the accused's appeal and replacing the suspended sentence with an absolute discharge: 22 However, what appears to have been given only cursory consideration is the appellant's need for security clearance in his present employment.

As the trial judge stated, there is no question the imposition of a conditional or absolute discharge would be in the best interest of the accused. Where the trial judge erred, in my view, is concluding that it would not be in the public interest to grant such a punishment. The only impediment to the granting of at least a conditional discharge in this case, appears to have been the nature of the assault; a punch in the mouth loosening two of the victim's teeth. That, in my view, was an error. [ 41 ] I have considered the case of R. v. Skolnick .

I am of the view that the principles expressed therein referred to in the

summary at page 8 of the reasons do not apply to the case at bar insofar as I may consider that the accused was, prior to my sentencing, convicted of a later offence and given a conditional discharge as referred to above. This prior discharge is merely a matter I am permitted to consider in applying the principles set out in Fallofield in determining what a fit and just sentence would be for this accused with respect to the offence for which I am sentencing him; see R. v. Tan and R. v. Drew , [1978] B.C.J.

No. 1141 , at paragraph 2 and 28 , where Seaton J.A. said this: 2 I start from this position: sentencing is a tremendously difficult task for a trial judge that will be made even more difficult if he does not know everything there is to know about the person being sentenced. I think it unreasonable to ask a trial judge to fix an appropriate sentence for someone when a portion of that person's life is not known to the judge. I reject the argument that the trial judge ought not to have been told of the diversion.

It is the use made of the knowledge of diversion that is important, not the presence of the knowledge. ... And in 28: In addition to deterrence to others, it is in the public interest that the court should know whether a person who has been convicted of an offence has received an absolute or conditional discharge on a previous occasion in determining whether he should receive an absolute or conditional discharge with regard to the conviction which is being considered [citation omitted].

Conclusion [ 42 ] It would clearly be in the best interests of the accused before the court for me to grant the conditional discharge sought by Mr. Myers as in doing so he would not end up with a criminal record. There is rarely a situation where the granting of a discharge is not in the best interests of the accused. This case, in my view, is no exception. [ 43 ] That said, this is not a case where my refusal to grant a discharge would have an adverse effect on the accused's plans to either immigrate to Canada or emigrate from Canada to another country. There is no evidence it will affect his current employment.

However, although not argued, it might affect his ability to enter a union and pursue his desire to have some form of trade and be gainfully employed performing such a trade in future and obtaining such employment. [ 44 ] I place no weight whatsoever on the argument that failure to grant a conditional discharge would affect his ability to travel to Palm Springs and visit his girlfriend's parents thereat. This is not a case, as was, for example, R. v. Tone , 2003 B.C.J.

No. 1688 , where the trial judge was persuaded that the accused needed to travel to the U.S. to work and earn income to support his family and that a criminal record would seriously inhibit his ability to do so. There is no evidence the accused wishes to work in the United States or elsewhere outside Canada. [ 45 ] Under the first condition in Fallofield , I find that the accused cannot be presupposed to be a person of good character as compared to a person who comes before the court without a discharge being part of his background.

He does, however, have no previous criminal convictions. [ 46 ] Further, I find that it would not be necessary to enter a conviction against him in order to specifically deter him from future offences including one like that in the case at bar or to rehabilitate him.

I am satisfied he has learned a lesson from this entire matter notwithstanding that I am somewhat troubled by his not clearly expressing any remorse for what he did. [ 47 ] I do find that the entry of a criminal conviction might well have potential significant future adverse repercussions for him, for example, on the employment and trade qualification fronts. This event was really a momentary lapse of judgment on his part and, fortunately, no one was hurt. I strongly doubt the accused will ever so conduct himself again. Thus, I find it would be in his best

interests to grant a conditional discharge. [ 48 ] Would the granting of a conditional discharge be contrary to the public interest? Principle number 6 in Fallofield makes it clear that general deterrence can result even if a conditional discharge is granted. I find on all the facts of this case that it would not be contrary to the public interest to grant a conditional discharge. [ 49 ] Mr. Skierka, I am certain, will understand that this is likely the last time he can expect to receive such a sentence. I have no doubt he will govern himself accordingly in terms of the way he lives his life going forward.

If he offends again and is convicted, he would be unwise to imagine that he would receive a third discharge. [ 50 ] Thus, I grant the conditional discharge sought by defence counsel. [ 51 ] The accused will be placed on probation for a period of 12 months. The terms will be as suggested by Crown counsel as follows: 1. You must keep the peace and be of good behaviour. 2. You must report in person to a probation officer at suite 100, 233 West 1st Street, North Vancouver, British Columbia, by four o'clock p.m. on January the 31st, 2017, and thereafter, as, how and when directed. 3.

You must notify the probation officer of your current residential address and must not change that address without the prior written permission of your probation officer. 4. You must attend any counselling, including anger management and violence prevention counselling, as directed by and to the satisfaction of your probation officer. 5. You must not possess any weapon or imitation weapon as defined by the Criminal Code . 6. You must not possess any knives except while preparing or consuming food or as is required while in the course of your lawful employment.

In the event you must transport a knife in an automobile to a place of employment, it must be carried only in the trunk of the vehicle while you are underway. 7. You must not possess any firearm, imitation firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, or any related authorization, licence, and registration certificate. 8.

You must perform 60 hours of community work service on or before June 30th, 2017, as directed by and to the satisfaction of your probation officer, and you must report to court in person by not later than June 30th, 2017, to confirm that you have completed these work hours. [ 52 ] I want to stress that I consider both the counselling and community work service aspects of the probation order herein to be extremely important components of the sentence I have pronounced and it is my expectation that the accused will strictly comply with same. [ 53 ] I order that a copy of these reasons be directed by Crown counsel to the accused's probation officer at the earliest possible date when his or her identity is known. [ 54 ] MR.

MYERS: Just a brief question, Your Honour, and I am sorry to interrupt, but I am not familiar with how the accused reports to the court before June 30th. Does he go to the registry or does he set a date in court? [ 55 ] THE COURT: Could we discuss that when I am finished -- [ 56 ] MR. MYERS: Sure. [ 57 ] THE COURT: -- my reasons? [ 58 ] MR. MYERS: My apologies. [ 59 ] THE COURT: I also make the DNA order sought by Crown.

The accused will attend at the North Vancouver RCMP detachment not later than Tuesday, February the 7th, at 4:30 p.m., and provide appropriate samples of his bodily substances to permit such testing to occur. [ 60 ] I also make the s. 110 Criminal Code of Canada order as sought by Crown for a period of one year. He is thus prevented from possessing the items referred to in s. 110(1) of the Criminal Code of Canada for one year. [ 61 ] I should also add that I am familiar with the case of R. v. Supeene , 2010 BCSC 2003 , a decision of Mr.

Justice Saunders of the British Columbia Supreme Court, being an appeal from a sentence granted by a Dossa P.C.J. on October 15th, 2010. This case was not argued by either counsel, but it is, in my view, very relevant to the case at bar. It has influenced me in the decision that I have come to in this case. [ 62 ] In Supeene , the circumstances of the offence as described by Mr. Justice Saunders are found at paragraph 3 of his reasons as follows: The accused was cut off by a vehicle in which he, his wife and daughter were passengers.

It seems from the evidence given in the court below that there was some acceleration of Mr. Supeene's vehicle towards that of the victim. A short time later, they came to be stopped at a red light. The accused got out of his vehicle, took with him a fish club, went to the driver's side and began yelling at the driver. He

smashed the window with his fist, shattering it. As a result, shards of glass rained inside the passenger cabin causing superficial cuts and abrasions and a cut that required stitches leaving the victim with a permanent scar. [ 63 ] I might add that the charge before the Provincial Court judge was one of unlawfully causing bodily harm contrary to s. 269 (

b) of the Criminal Code . Mr. Justice Saunders continued in his reasons as follows: [5] It appears that Mr. Supeene appreciated immediately that he had made a big mistake.

He returned to the vehicle, said to his wife that they were going to wait there for the police; he did wait and the police quickly attended. [6] After reviewing the circumstances of the offence and the submissions of counsel on the appropriate disposition, The Honourable Judge Dossa said the following beginning at para. 22 of her judgment: [22] In this case the road rage incident especially because of the prevalence of road rage is deserving of censure. [7] I will stop there and interject the following remark of my own: I think that remark is entirely appropriate.

There is a perception which I believe is properly held by members of the public that road rage is a very serious problem on our streets. It may have been a problem that has become worse in recent years. Vehicles are more powerful; their suspensions and steering systems are more finely tuned.

These factors perhaps lead drivers to feel that they are entitled to take liberties, disregard the rules of the road, and take chances with themselves and take chances with other people's lives and other people's property. [8] Our society is a busy one; people are stressed; our roads are more congested which leads to people feeling stressed, and leads to people again feeling the need to take shortcuts and playing fast and loose with the rules of the road. [9] There are also numerous distractions which face drivers such as cell phones, ipod devices and so forth although there have been recent changes in the law intended to address some of those. [10] All of these factors I think work towards making our streets less safe places and as a result of that we do see drivers who fly off the handle, who operate their vehicles inappropriately and in extreme cases such as this one, escalate their conduct into personal confrontations.

The judge in the court below was entirely correct in saying that this incident was one deserving of censure. [ 64 ] Justice Saunders, then in paragraph 11 referred further to the decision and reasons of Her Honour Judge Dossa as follows: [11] The Court went on to say, again continuing at para. 22: [22] ... The accused came out of the vehicle with a fish club and smashed the window with his fist causing injury to the victim. [23] There are mitigating factors. The accused has no criminal record, he is very remorseful, and has taken responsibility for his actions.

He has taken anger management counselling and written a letter of apology and apologized to the victim in court. His wife and other letters of support describe him as non-violent and this being out of character for him.

He has refereed minor hockey and has been involved in community service. [12] The Court then continues: [24] So having heard the submissions of counsel and having reviewed the case law and applying the principles of sentencing to the circumstances of this case, I am satisfied that a conditional discharge would be in the accused's best interests and the public interest can be met with a term of probation, counselling and community work service hours and restitution. [ 65 ] The appeal was, of course, taken because the Crown felt that the decision of Dossa P.C.J. was an unfit sentence and asked the Supreme Court to increase it to something more significant.

The conclusion of Mr. Justice Saunders is short and is as follows at paragraph 24: So in conclusion, I am not prepared to find that this was a clearly unfit sentence nor that undue consideration was given to inappropriate factors. [ 66 ] The last point which bears repeating, I think, as well: Mr. Supeene, this is a case that could very well have been decided against you and you could very well have faced imprisonment. I think you know that, sir.

This is a situation where I feel it is appropriate to defer to the decision of the Provincial Court judge and one in which the sentence that was given you was within the range of possible appropriate sentences and so for that reason the appeal of the Crown will be dismissed. [ 67 ] Those are my reasons. [ 68 ] Now, your point? [ 69 ] MR. MYERS: I apologize, Your Honour. I just -- when you had ordered that he report to the court before June 30th, does he do that -- [ 70 ] THE COURT: Well -- [ 71 ] MR. MYERS: -- through the registry? [ 72 ] THE COURT: -- we could today set a date in court.

I will not be sitting at that time, but I want to impress upon your client that these community work service hours are to be done. Once a judge sentences an accused, the matter of his compliance with the court order can be, out of his or her hands unless the court requires the accused to return to court to report on his progress, for example, in

whether or not he has done the hours. If he has not, then there would be reasonably some discussion as to whether he needs an extension or not. If so, how long? [ 73 ] If he has not done them, why has he not done them, and many judges start to cause the accused to return regularly to court, sometimes as frequently as weekly, so that the accused will understand that it is not a matter of choice that he does the community work service hours, but rather more the need on his part to comply with the court order that is made.

But for that machinery, the court then is left with a situation where it is up to really the probation officer to determine whether the accused will complete all aspects of the sentence imposed. If he does not and if the probation officer does not wish to take the matter further, there is no breach charge that is laid. The work service is never done. The sentence that the judge put in place saying that it was a fit and just sentence is never carried out. That is not going to occur in the case at bar. [ 74 ] Now, Ms.

Ostry, do you have a suggestion as to how we might deal with this reporting and following up with the accused that he does what he is ordered to do? [ 75 ] MS. OSTRY: Perhaps, Your Honour, if my friend has a Thursday, that is our usual list day. [ 76 ] MR. MYERS: I was -- [ 77 ] MS. OSTRY: -- that suits him some months down the line, we can set that date for a progress check at this point and then, if the accused finishes his hours beforehand, my friend can always call the matter ahead and deal with it earlier. [ 78 ] MR.

MYERS: I was going to suggest June the 15th which is two Thursdays before the date Your Honour stated so that -- [ 79 ] THE COURT: All right, June -- [ 80 ] MR. MYERS: -- gives us some time and -- [ 81 ] THE COURT: June, fine. We will handle in that part of my reasons in this fashion then. [ 82 ] The next date in this matter will be June the 15th, 2017, at 9:30 in the morning and at that time, the accused is to present himself and indicate to the presiding judge, who will not be me, what his progress is in completion of the community work service. [ 83 ] Mr.

Myers, I have no expectation that you need to be present at that time. If you choose to be, that would be fine. This is a very simple matter. Either the accused has done them or some of them or not, and he should have in his possession something in writing on a piece of letterhead from the organization where he has done the work, signed by some officer or manager of that organization to deal with the point. It would not be sufficient, in my view, for him simply to show up and indicate orally without any backup that he has done the work. I hope that is clear. [ 84 ] MR. MYERS: Yes. [ 85 ] THE COURT: All right.

Anything else? [ 86 ] MR. MYERS: Victim fine surcharge. [ 87 ] THE COURT: He is working part-time. Does he need time to pay it? [ 88 ] MR. MYERS: If he can just be given the two months, Your Honour. [ 89 ] THE COURT: All right. I will give him until March 31st, which is a Friday, to pay that. [ 90 ] MR. MYERS: Thank you. [ 91 ] THE COURT: All right. Thank you. Thank you. [ 92 ] MS.

OSTRY: Your Honour, one other thing, I was taking notes as you were setting it out, but the order that Crown direct a copy of the written reasons of your sentencing to the probation officer, was it once the supervising officer is known or -- [ 93 ] THE COURT: That is what I said. [ 94 ] MS.

OSTRY: I am just wondering if it might be amended that I can send it to the probation office with a direction that it be forwarded onto his file because I think they do -- I am not sure what their process is in terms of assigning officers and I know that files move from officer to officer. [ 95 ] THE COURT: It is important to me, Ms. Ostry, that the probation officer who is dealing with this accused know what I have said in court this morning. I have no understanding or particular confidence that that ever occurs. [ 96 ] MS.

OSTRY: Yes. [ 97 ] THE COURT: In this case, I wish it to occur and, hence, I made the order that I made. Is it a difficult thing for someone in your office to find out in a week's time, say, who his probation officer is? [ 98 ] MS. OSTRY: I do not think it is difficult. I am just not sure how long it takes for them to do it. I myself will not be in the courthouse to do it, so. [ 99 ] THE COURT: Well, then, you know, wait two weeks. I am not going to change that order.

[ 100 ] MS. OSTRY: Okay. [ 101 ] THE COURT: I made it for a very good reason. [ 102 ] MS. OSTRY: Thank you. [ 103 ] THE COURT: All right, thank you. The Honourable Judge B. Dyer Provincial Court of British Columbia